Alderman v. Bci Engineers & Scientists Inc.

Decision Date02 September 2011
Docket NumberNo. 2D10–1299.,2D10–1299.
Citation68 So.3d 396
CourtFlorida District Court of Appeals
PartiesSean ALDERMAN, Appellant,v.BCI ENGINEERS & SCIENTISTS, INC., Appellee.

OPINION TEXT STARTS HERE

William J. Cook and Chris A. Barker of Barker, Rodems & Cook, P.A., Tampa, for Appellant.Stephen M. Bull and Jason B. Vrbensky of Bull & Associates, P.A., Orlando, for Appellee.WALLACE, Judge.

Sean Alderman appeals an adverse final judgment entered on his claims for negligence and breach of contract against BCI Engineers & Scientists, Inc. (BCI). The circuit court entered the final judgment after it made separate rulings granting BCI's motions for summary judgment—first on the negligence claim and then on the contract claim. Because BCI did not meet the required showing for the entry of a summary judgment on either claim, we reverse the final judgment in its entirety.

I. INTRODUCTION

Mr. Alderman's residence suffered damage caused—at least in part—by sinkhole activity. He hired BCI to perform a sinkhole investigation and to prepare a report. BCI also acted as Mr. Alderman's engineer of record for the remediation work that was performed by another contractor. Mr. Alderman settled the sinkhole claim with his property damage insurer, and he gave the insurer a release. Later, Mr. Alderman filed an action against BCI for negligence and breach of contract. The issues arising on our review of the circuit court's orders granting BCI's motions for summary judgment on the negligence claim and the breach of contract claim involve two questions: (1) whether the scope of the release that Mr. Alderman gave to his property damage insurer was broad enough to include the negligence claim against BCI and (2) whether BCI's engineering work on the investigation and report met the applicable standard of care.

II. THE FACTUAL BACKGROUND

In January 2007, Mr. Alderman became aware of a possible sinkhole problem at his residence in Lakeland. He contacted his insurer, State Farm Florida Insurance Company, and met with an adjuster. Afterward, Mr. Alderman hired BCI, an engineering firm, to help him address the problem. BCI performed its work on the project in two distinct stages, an investigative phase and a remediation phase.

The investigative phase of the work began on February 9, 2007, when Mr. Alderman entered into a written contract with BCI for the performance of a geotechnical subsidence investigation. The scope of the services called for by the contract included an on-site inspection, appropriate testing, and the preparation of a report documenting the results of the investigation.

On March 21, 2007, BCI completed its geotechnical report presenting the results of the subsidence investigation. In the report, BCI opined “that the distress to the Alderman residence is the result of a combination of factors, including possible sinkhole activity.” BCI recommended a program of subsurface compaction grouting to stabilize Mr. Alderman's residence against further settlement. The proposed grouting would be performed by a foundation repair contractor, not BCI. But BCI's report also made the following recommendation for the second, or remediation, phase of its work: “In order to ensure compliance with the finding of this study and project specifications, we recommend that BCI be retained to evaluate the contractor bids and provide project monitoring and oversight services during the grouting operations.”

Mr. Alderman hired Certified Foundations, Inc. (CFI), to implement the sinkhole stabilization program recommended by BCI at his residence. CFI's written proposal for the remediation work listed BCI as the geotechnical engineer for the project. The proposal provided further: “This proposal is based on the geotechnical exploration provided. All work shall be in accordance with this proposal and any further direction from BCI, the engineer of record.”

On April 5, 2007, BCI's manager for the Alderman project sent a request for budget approval for the second phase of the project—the remediation phase—to State Farm's adjuster. BCI's request for budget approval for the remediation phase of its work said, in pertinent part:

BCI Engineers & Scientists, Inc. is pleased to have been selected to supervise the Compaction and Chemical Grout remediation program that was recommended in our Subsidence Investigation Report. We will perform the following tasks:

• Monitoring of grout casting installation

• Monitoring of compaction grout injection

• Layout and monitoring of chemical grout injection

The cost for these services will be $16,803. Please acknowledge your approval by signing below and returning it to us so that we may move forward. Should you have any questions or comments, please contact us. Thank you.

State Farm's adjuster promptly signed the request to indicate his acknowledgment and acceptance and returned it to BCI.

CFI performed the grouting, and BCI supervised the project as Mr. Alderman's engineer. During the grouting process, the septic tanks on the property ruptured, causing sewage effluent to back up into parts of the house. As a result, Mr. Alderman had to hire a water damage and restoration contractor to clean the affected areas of the house. More important, once the grouting process was completed, Mr. Alderman continued to experience cracking and other damage to his residence attributable to its ongoing settlement. In Mr. Alderman's view, the grouting program recommended by BCI and implemented by CFI had not fixed the problem.

III. THE PROCEDURAL BACKGROUND

In June 2008, Mr. Alderman filed an action against BCI, CFI, and the water damage contractor. In his complaint, Mr. Alderman asserted two claims against BCI: Count I (negligence) and Count V (breach of contract). The allegations of negligence against BCI related to its performance on the second phase of the work, i.e., supervising the remediation work that was undertaken by CFI. In his claim for breach of contract, Mr. Alderman alleged that BCI had breached the written contract for the first phase of the work, i.e., the geotechnical subsidence investigation.

BCI answered the complaint and raised numerous affirmative defenses. After conducting discovery, BCI moved for summary judgment on both the negligence and breach of contract claims. The circuit court granted BCI's motion on the negligence claim but denied the motion on the breach of contract claim. Later, BCI renewed its motion for summary judgment on the breach of contract claim, and the circuit court granted the motion, which left Mr. Alderman with no claims remaining against BCI. Accordingly, the circuit court entered a final judgment in favor of BCI and against Mr. Alderman. This appeal followed.

IV. THE STANDARD OF REVIEW

The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, Huntington Nat'l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) “the moving party is entitled to a judgment as a matter of law,” Aberdeen at Ormond Beach, 760 So.2d at 130. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

V. THE NEGLIGENCE CLAIM

BCI based its motion for summary judgment on the negligence claim on certain language appearing in a release that Mr. Alderman had signed and delivered to State Farm when he settled his insurance claim. BCI was not identified by name in the release. Nevertheless, BCI claimed that the coverage of the release was extensive enough to cause the release of Mr. Alderman's negligence claim against BCI in addition to his insurance claim against State Farm.

The instrument that Mr. Alderman signed and delivered to State Farm in connection with the settlement of his insurance claim is titled “General Release of All Claims.” Mr. Alderman is identified in the release as the “Releasor.” The instrument provides, in pertinent part:

1. ... By executing this General Release, Releasor ... does hereby fully and completely release and discharge STATE FARM FLORIDA INSURANCE COMPANY (and all parent and subsidiary companies affiliated with it in anyway [sic] ), hereinafter referred to collectively as “Releasees,” from any and all current or future claims, rights[,] and actions whatsoever, whether ripe or contingent, arising in relation to the filing of insurance claims by Releasor relative to or associated with insurance coverage for the [Alderman residence].

2. NOW THEREFORE in consideration of the payment [of the settlement amount], the receipt and sufficiency of which is hereby acknowledged, the Releasor agrees as follows:

(a) The Releasor does hereby ... release, discharge, acquit, and indemnify Releasees, and their officers, directors, shareholders, executors, administrators, insurers, insureds, suppliers, distributors, attorneys, contractors, subcontractors, successors, privies, assigns, associations, parents, subsidiaries, holding companies, or partnerships of and from any and all claims ... whatsoever including but not limited to any coverage dispute, complaints regarding claims handling or bad faith, or the termination of insurance of the Property by the Releasees which the Releasor now has or which may hereafter accrue on account of or in any way growing out of any and all known or unknown, foreseen and unforeseen, property damage and any consequences of the activities listed in paragraph 1 above. The parties agree that the terms of this Release do not impact any rights of either Releasor or Releasees from seeking damages (either tort, contract, or...

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